Full opinion text
MEMORANDUM OPINION AND ORDER HAIGHT, District Judge: INTRODUCTION This is a private antitrust suit, tried to the Court without a jury. Plaintiff North American Soccer League (the “NASL”) is an unincorporated association of 24 professional soccer clubs located throughout the United States and Canada. The other plaintiffs are 21 of those 24 member organizations. Defendant National Football League (the “NFL”) is an unincorporated association of 28 professional football clubs located throughout the United States. The other defendants are 25 of those 28 member organizations. In October, 1978, the NFL scheduled a meeting to vote upon a proposed amendment to its by-laws which reads as follows: “Amend Article IX, by adding a new Section 9.4 as follows: “9.4(A) No person (1) owning a majority interest in a member club, or (2) directly or indirectly having substantial operational control, or substantial influence over the operations, of a member club, or (3) serving as an officer or director of a member club, nor (4) any spouse or minor child of any such person, may directly or indirectly acquire, retain, or possess any interest in another major team sport (including major league baseball, basketball, hockey and soccer). “(B) The prohibition set forth in subsection (A) hereof shall also apply to relatives of such persons (including siblings, parents, adult children, adult and minor grand children, nephews and nieces, and relatives by marriage) (1) if such person directly or indirectly provided or contributed all or any part of the funds used to purchase or operate the other sports league entity, or (2) if there exists between such person and any such relative a significant community of interest in the successful operation of the other sports league entity. “(C) The Commissioner shall investigate, to the extent he deems necessary or appropriate, any reported or apparent violation of this Section and shall report his findings to the Executive Committee pri- or to imposition of disciplinary action by the Committee. “(D) Beginning on February 1, 1980, any person who, after notice and hearing by the Executive Committee, is found to have violated subsection (A) or (B) above will be subject to fines of up to $25,000 per month for each of the first three months of violations; up to $50,000 per month for each of the next three months; and up to $75,000 per month thereafter. In addition, violations of more than six months’ duration may be dealt with by the Executive Committee pursuant to Article VIII, Section 8.13(B). “(E) If such person does not pay such fine to the League Treasurer within 20 days of its assessment, the unpaid amount thereof may be withheld, in whole or in part, by the Commissioner from available funds in possession of the League Office belonging to the member club with which the person in violation is affiliated.” This proposed by-law will hereafter be referred to as the “cross-ownership ban.” Plaintiffs allege that the cross-ownership ban, if enacted by defendants, would violate Section 1 of the Sherman Antitrust Act, 15 U.S.C. § 1. Their complaint, invoking Sections 4 and 16 of the Clayton Act, 15 U.S.C. §§ 15 and 26, sought to preliminarily and permanently enjoin implementation of the by-law. Plaintiffs also prayed for a declaratory judgment pursuant to 28 U.S.C. § 2201, declaring the proposed cross-ownership ban, together with other actual and threatened conduct by defendants, violative of the Sherman Act, and for treble damages. Jurisdiction lay under 28 U.S.C. §§ 1331 and 1337, and venue under 28 U.S.C. § 1391 and 15 U.S.C. §§ 15 and 22. Defendants denied the allegations of the complaint, and asserted two counterclaims against plaintiffs, alleging Sherman Act violations on their part. At the outset I granted plaintiffs a preliminary injunction, restraining defendants from enacting the proposed by-law or otherwise implementing the cross-ownership ban. 465 F.Supp. 665. The case then proceeded through discovery, preparation of a joint pre-trial order, and trial. I wish particularly to compliment counsel for both sides for meticulous preparation and able advocacy. I now enter the following Findings of Fact, Discussion, and Conclusions of Law. Rule 52(a), F.R.Civ.P. FINDINGS OF FACT These findings adopt, in substantial measure, the helpful statement of agreed facts prepared by the parties in connection with the pre-trial order. I. THE PARTIES No. 1: Plaintiff North American Soccer League (the “NASL”) is an unincorporated association of twenty-four (24) professional soccer clubs located throughout the United States and Canada. No. 2: The NASL was organized in 1968 upon the merger of two predecessor soccer leagues for the purpose of promoting major league professional soccer in North America and is engaged in interstate commerce in the business of operating a professional soccer league. No. 3: The other plaintiffs (or their successors) are 21 of the NASL member organizations (each of which is a corporation except where noted) which, at the time suit was filed, owned and operated professional soccer clubs for profit under the names and in the cities set forth below: The NASL and these NASL member clubs are hereinafter referred to collectively as the NASL plaintiffs (while this opinion was in preparation, the Philadelphia Fury was sold to Molson Breweries of Montreal, and the Philadelphia NASL franchise transferred to the latter city). No. 4: Defendant National Football League (the “NFL”) is an unincorporated association of 28 professional football teams which is engaged in interstate commerce in the business of operating a major professional football league in the United States. No. 5: The other defendants are 25 of the NFL member organizations (each of which is a corporation except where noted) which own and operate professional football clubs for profit under the club names and in the cities set forth below: The NFL and the 24 NFL member club defendants other than Pro-Football, Inc. are hereinafter referred to collectively as the “NFL defendants”; defendant Pro-Football, Inc. is referred to as the “Redskins.” St. Louis Cardinals Football Co. is a named defendant herein, but has not been served with process. (The Redskins were dismissed from the suit on plaintiffs’ consent, at the conclusion of plaintiffs’ case. That is because Edward Bennett Williams, the Redskins’ principal owner, has consistently opposed the NFL cross-ownership ban.) II. NATURE OF INTERSTATE TRADE AND COMMERCE No. 6: Both the NFL defendants’ operation of and engagement in the business of major league professional football and the NASL plaintiffs’ operation of and engagement in the business of major league professional soccer involve substantial volumes of interstate trade and commerce, including, inter alia, the following interstate activities: travel; communications, purchase and movement of equipment; broadcasts and telecasts of league games; advertisements; promotions; sales of tickets and concession items; employment of players and referees; and negotiations for all of the above. III. THE CHARACTERISTICS OF PROFESSIONAL TEAM SPORTS LEAGUES No. 7: The NASL and the NFL are two of the major professional sports leagues in the United States. Each is composed of member teams located throughout the United States (and, in the case of the NASL, in parts of Canada) which compete on the playing field with each other and also operate jointly to promote attendance at and fan interest in the games which they play and to create and market professional athletic entertainment events in competition with other sports leagues (and other producers and marketers of sports and other entertainment events.) No. 8: The NASL and NFL, along with the other major professional sports leagues in hockey, basketball and baseball, compete with each other in the entertainment industry. No. 9: The NASL, the NFL and the other major professional sports leagues all compete in interstate commerce for fan interest, media attention, advertising revenues and network television revenues. The primary “products” sold to the public by the individual sports leagues and/or their member teams, including the NFL and NASL, are tickets for spectator viewing and the broadcast rights to games which the individual clubs play with other league members. No. 10: In the case of ticket sales and sale of local radio/television broadcasting rights, this competition occurs within the metropolitan areas in which any two or more leagues have teams; in the case of network broadcasting and telecasting rights, it occurs in a market including the entire United States and some contiguous areas of Canada. No. 11: The ways in which the NFL, the NASL and other professional sports leagues organize the activities to be carried out by a central league office, various committees and the member clubs individually vary from league to league. Professional team sports leagues like the NFL and NASL, as opposed to their individual member teams, are generally responsible for, inter alia: national promotional activities; the negotiation of network television contracts; the employment of referees; the structure and rules of competition for the sport; certain aspects of player relations; and the establishment and enforcement of rules governing league membership. No. 12: The individual clubs which comprise the NASL, like those which make up the NFL, each require, inter alia: (a) adequate capital investment to support operations; (b) membership in a league in which the member teams are reasonably well matched in playing ability; (c) the employment of a group of highly skilled players; (d) location in a geographic area that is able to support the team by attendance at games sufficient to provide adequate revenues; (e) the sale of radio, television and ancillary rights to the games which they play; and (f) a share of league revenues or funds from other sources adequate to assure the ability to field a team which is reasonably well matched with others in the same league. No. 13: The economic success of each franchise in a professional sports league is dependent on the quality of sports competition throughout the league and the economic strength and stability of other league members. No. 14: Damage to or the loss of any professional sports league member ordinarily damages the stability, success and operations of both the league and its individual members. IY. MARKETS IN WHICH PROFESSIONAL TEAM SPORTS LEAGUES COMPETE WITH EACH OTHER No. 15: As noted in Finding No. 8, supra, professional sports leagues compete with each other in the entertainment industry. The general entertainment market includes television, and identifiable submarkets such as professional sports, professional team sports, and specialized television sports programming. No. 16: The NASL contends that the leagues also compete with each other in a market for “sports ownership capital and skill,” whose boundaries are confined to individuals presently owning controlling interests in major league sports teams. I find, however, that to the extent a “sports ownership capital and skill” market exists, its boundaries are significantly wider than the NASL suggests. The market includes sports-minded, wealthy individuals who are not presently team owners, but would be receptive to an attractive investment opportunity in the field; and corporations of the type previously and presently involved in professional sports team ownership. No. 17: As for individuals, the NASL’s perception of a “sports ownership capital and skill” market is based upon an archetypal figure I came to know during the trial. I shall call him, for lack of a better word, the “sportsman.” The sportsman has these distinguishing characteristics: love of sport; love of the limelight (or at least a willingness to be exposed to public view); substantial capital and a readiness to risk it in ventures with the potential for large short-term losses; and, in some cases, a familial affection for the city in which his teams perform. Sportsmen who testified during the trial included Lamar Hunt of Dallas; Joseph Robbie of Miami; Leonard Tose of Philadelphia; Edward Bennett Williams of Washington; Aaron Fogelman of Memphis; and Peter Poeklington of Ed-' monton. Just as some successful individuals turn for their extracurricular fulfillment to music (Avery Fisher Hall), rare books (the Beinecke Library), or fine art (the Frick Museum), so these individuals, at various stages in their personal races through life, have turned to professional sports. No. 18: The paths by which individuals come to professional sports team ownership vary, as do the individuals themselves. Hunt has for a number of years focused his energies and largely inherited fortune upon a variety of sporting ventures: controlling ownership of the NFL Kansas City Chiefs and the NASL Dallas Tornado, as well as a leading role in professional tennis tournaments. Williams acted as attorney for other individuals who owned the Redskins, eventually acquired a controlling ownership himself, and recently expanded his sports interests to ownership of the baseball Baltimore Orioles. Poeklington was a businessman (meatpacking, car dealership, real estate development) who acquired his first sports ownership interest in the Edmonton Oilers (then of the now defunct World Hockey Association, now a National Hockey League team) as the result of a casual exchange with a friend. Tose is chairman of an interstate trucking company, who in 1969 acquired a minority interest in the Philadelphia Eagles, and now owns 99 per cent of the team. These individuals illustrate the ways in which, from various walks of life, one can become a professional sports team owner, frequently without prior experience in the field. No. 19: Corporate owners have been a significant factor in American professional team sports. The NFL’s by-laws prohibit corporate ownership as a matter of policy, but the other four major leagues do not. Major league baseball currently has 10 corporate investors in control group positions; the NASL has 8 (including Molson Breweries’ recent acquisition of the Philadelphia franchise); the National Basketball Association has 3; and the National Hockey League 8. Thus 29 corporations hold controlling interests in four major sports leagues. The industries most heavily represented among corporate sports owners are those involved in consumer products sold to sports fans (beer, soft drinks and other beverages, cigarettes, home building supplies), or in communications, which market sports. Many other corporations, not currently sports owners, fit this profile. There are also a number of corporations in other fields that are identified with a particular city, and have invested in one of that city’s professional teams. No. 20: Shifts between individual and corporate ownership occur. We have noted the sale of the Philadelphia NASL franchise by a limited partnership of individuals to a corporation. Conversely, I may judicially notice that some years ago, CBS, a communications corporation, sold the baseball New York Yankees to a group of individuals headed by George Steinbrenner, who conforms neatly to the “sportsman” profile described in Finding No. 17. No. 21: The presence of potential individual or corporate investors in professional sports precludes an effort to confine the boundaries of a “sports ownership capital and skill” market to present major league sports owners. While the NASL has been relatively unsuccessful in recent years in attracting potential investors, that is because the league has lost increasing amounts of money over the years. In 1979, for the second consecutive year, every NASL team operated at a loss, with some teams losing in excess of $2,000,000; and the NASL teams showed an aggregate operating loss of over $20,000,000, the most in the NASL’s history. By way of contrast, when the NFL, a consistently profitable league, expanded by adding the Seattle and Tampa Bay franchises in 1974, the league had no difficulty attracting competing bidders. The capital resources of potential sports investors are reasonably interchangeable with those of present investors. V. MARKETS IN WHICH CONSTITUENT MEMBER TEAMS OF A SPORTS LEAGUE COMPETE WITH EACH OTHER No. 22: Member teams of the NASL and NFL, as in the other major sports leagues, are separate legal entities. Within a professional sports league, the member teams compete with each other in certain identifiable markets. These include competition for player services, and, where two teams of the same league play in the same geographical area, competition for the loyalty in the hearts, and dollars in the pockets, of local sports fans, as well as coverage in the local media. No. 23: However, in markets where the competition pits one league against another, with joint league activity neither implicating nor impinging upon competition between member teams, the league acts in fact as a single economic entity. That is the situation with respect to competition in the identifiable economic markets revealed by the evidence in this case. VI. THE RELATIVE POSITIONS OF THE NFL AND NASL AMONG PROFESSIONAL TEAM SPORTS No. 24: In the past decade, the NFL has been the most successful professional sports league in the United States with respect to average per-game attendance, network media revenues and coverage, average value of franchises and total league-wide and per-club revenues. No. 25: Soccer is one of the fastest growing sports in the United States on both the amateur and professional sports levels. No. 26: Since 1968, professional soccer has experienced substantial and accelerating growth in fan interest, media following, paid attendance, number of franchises and geographic scope, and the NASL has emerged as the leading professional soccer league in the United States. No. 27: The NASL and its predecessor leagues have engaged in the business of presenting professional soccer in the United States continuously for approximately 13 years. Compared to the other major professional sports leagues in football, baseball, basketball and hockey currently competing with the NASL in the U. S. professional sports, professional team sports and television programming markets, the NASL is by far the youngest, the least mature, and the most recent entrant. No. 28: In order to compete with these other pre-existing professional sports leagues, the NASL needs to: (i) develop fan and media interest in a relatively new sport, (ii) attract and maintain sufficient sources of capital and entrepreneurial skill, and (iii) gain access to suitable stadium facilities. No. 29: As a relatively new professional sports league, the NASL must also develop fan loyalties and interest. No. 30: In the past decade, which included the early years of NASL history, each of the other major professional sports leagues — the NFL, Major League Baseball (“MLB”), the National Basketball Association (“NBA”) and the National Hockey League (“NHL”) — all exceeded the NASL in per-game attendance and seasonal attendance, and at least the NFL and Major League Baseball exceeded the NASL in gross media revenues received. No. 31: The NFL and Major League Baseball are approximately equivalent in public popularity and financial health, followed by the other major professional sports leagues in basketball, hockey and soccer. The NFL is not “dominant” over its competitors. The NFL seeks to compete with the NASL and other professional sports leagues and to develop a totally independent strategy for the marketing of its products. No. 32: Competition between the NASL and NFL has grown over the past few years because of the similarity between the two sports and the overlaps between their seasons, their franchise locations and, in some cases, their stadiums. No. 33: While the ability of professional sports teams to operate at a profit depends upon several factors, including league-wide and local television and radio revenues, gross attendance, ticket prices, stadium size, local population (i. e., spectator base) and the success of a particular team on the playing field, the existence of a lucrative network television contract is particularly important. In that regard, the NFL has far outstripped the NASL. The NFL currently enjoys contracts with the three major television networks which yield about $650 million over four years, or $5,200,000 per team per year. In 1979 the NASL’s network television contract provided only $500,000, or $21,000 per team. No. 34: The NASL has undergone a continuing process of change and experimentation in ownership and franchise location over the past eleven years. Since the NASL’s formation in 1968, through the time of trial, 41 NASL franchises have either been sold, moved or ceased operations and 25 franchises have, at one time or another, been added to the league. No. 35: Apart from the divestiture of NASL ownership interests which could result from implementation of the NFL Constitution and By-law amendment in issue in this litigation, at least seven NASL franchises were at the time of trial seeking refinancing or transfers of club ownership and/or locations. VII. THE STRUCTURE OF NASL AND NFL OWNERSHIP No. 36 : One of the NFL’s ownership policies is that, as far as possible, each NFL team have a 51% controlling owner. Thus, the number of NFL owners with operational control of NFL teams (by virtue either of majority ownership or a position such as managing general partner or chief executive officer) is less than 50. Another of the NFL’s ownership policies is that the controlling owner of NFL teams cannot be a corporation whose primary business purpose is not the ownership and/or operation of an NFL team. No. 37: Current NFL and NASL owners vary in their capital resources, personal entrepreneurial skills devoted to the activities of their team, public visibility and risk-reward incentives. No. 38: There are similarities between the operation of the NASL and its teams and the operation of the NFL and other professional sports leagues and their teams. Many of these similarities involve the sort of operations usually handled by a small group of controlling owners and/or employee managers. Many investors in sports teams take no active role in these matters. No. 39: Twelve NASL franchises are currently owned in whole or in part by individuals (or, in one case, the spouse of an individual) with an ownership interest in a team in another professional team sports league. No. 40: At the time suit was commenced, four NASL franchises — i. e., those owned by Lamar Hunt, the Robbie family, Peter Pocklington and Madison Square Garden Corporation — involved controlling ownership simultaneously in two or more major sports leagues. The other NASL cross-ownership situations involved persons or corporate entities which are either (a) controlling interest holders in one league and minority investors in another league, (b) minority investors in more than one league, or (c) in one instance, a holder of controlling interests in both an NASL team and a minor league professional baseball franchise. Since that time, the press has reported the sale of the NASL Philadelphia franchise to Molson Breweries of Montreal, a corporation which also owns the NHL Montreal Canadians. The press has also reported the decision of Madison Square Garden Corporation to sell its NASL franchise, the Washington Diplomats. No. 41: As of the date of the commencement of this action, the ownership of four NASL clubs involved cross-ownership with NFL clubs. Lamar Hunt was the individual controlling owner of the NFL Kansas City Chiefs and the NASL Dallas Tornado. Joseph Robbie was the controlling owner of the NFL Miami Dolphins, and his wife Elizabeth the controlling owner of the NASL Fort Lauderdale Strikers. William Bidwill had an individual controlling interest in the NFL St. Louis Cardinals, and a 3 per cent interest, without active management participation, in the NASL California Surf. Certain individual beneficial owners of the NFL Seattle Seahawks also had interests in the NASL Seattle Sounders. NASL/NFL cross ownership in respect of the Seattle franchises was subsequently eliminated. The situation in respect of Hunt, the Robbie family, and Bidwill remains unchanged. If the NFL cross-ownership ban forming the subject matter of this litigation is implemented, Hunt, the Robbies, and Bidwill must divest themselves of their NASL interests if they wish to retain their NFL interests. No. 42: A number of NFL and American Football League (“AFL”) owners were investors in the NASL or its predecessor entities prior to 1969. Of this initial group of NFL/AFL owners, all but Mr. Hunt and Mr. Bidwill disposed of their NASL interests before 1969. Mr. Hunt thereafter played a significant role in the growth and development of the NASL, particularly during its early years. No. 43: Because teams in a professional sports league are interdependent (see Finding Nos. 13 and 14, supra), strong franchises and respected, active owners are important to a league’s stability and future. The presence of Hunt and the Robbie family as NASL owners has been of significant assistance to the league in attracting additional owners and capital, and in creating in the eyes of the media and the public an aura of stability and “credibility” for the NASL. Their departure, should the NFL cross-ownership ban be implemented and these individuals decide to divest themselves of their NASL interests, would have a significantly adverse effect upon the NASL. Comparable circumstances do not exist with respect to Bidwill, a minor and inactive NASL owner. No. 44: There is no persuasive evidence that any other NFL owner, or member of his family, has seriously entertained a desire to purchase an NASL franchise, or been deterred from doing so by the NFL policy against cross-ownership. While the NASL has made repeated efforts to interest NFL owners in NASL franchises, and NFL owners have on occasion referred to the NFL cross-ownership policy as an obstacle to further consideration, in point of fact NFL owners have been unreceptive to NASL overtures for two primary reasons: their evaluation of an NASL franchise as a bad investment; and agreement with the longstanding NFL policy (see Findings Nos. 45-47, infra) that sports team owners should not divide their energies or loyalties. VIII. THE NFL’S CROSS-OWNERSHIP POLICIES No. 45: Pete Rozelle became the NFL commissioner in 1960, and holds that position today. During the 1950’s a prior commissioner, Bert Bell, had expressed the view that an NFL owner should not acquire a controlling interest in another major league sports team. Bell articulated this policy as a matter of general principle, not directed at any particular rival league, but grounded in notions of conflict of interest, and the desirability of an NFL owner giving his undivided loyalties and energies to that league. An early manifestation of the policy occurred when Bell urged the owner of the NFL Baltimore franchise to abandon plans to acquire the baseball Baltimore franchise. Rozelle found himself in agreement with this policy when he became NFL commissioner, and took the same position in comparable situations in the early 1960’s. No. 46: The NFL’s cross-ownership policy was not reduced to writing until 1967. At a special league meeting on January 16 of that year, representatives of the 16 teams which then comprised the league unanimously passed the following resolution: “RESOLVED that the National Football League does reaffirm its traditional position that no person having operating control of a franchise in the National Football League may acquire or possess control, directly or indirectly, of any other team sports enterprise or business, and that league counsel is instructed to draft appropriate amendments to the Constitution and By-Laws and necessary related resolutions defining the word ‘control’ for the purpose of this resolution.” No. 47: In June of 1966, the NFL and the American Football League (“AFL”) had announced an intent to merge. The formal merger agreement was signed on December 1, 1967. The Kansas City Chiefs, owned by Lamar Hunt, was one of the AFL teams merged into the NFL. Full implementation of the NFL/AFL merger took place in 1970. No. 48: Although the NFL 1967 resolution called for the drafting of Constitutional and By-Law amendments to ban cross-ownership, no such drafts were in fact prepared for a number of years. The cross-ownership subject continued to be discussed at league meetings, the ranks of NFL owners now swelled by the addition of the former AFL owners. Then, in a meeting of representatives of the 26 teams on May 23, 1972, the league voted 26-0 in favor of the following resolution: “RESOLVED, that no person owning a majority interest in or in direct or indirect operational control of a member club may acquire any interest in another major team sport. Additionally, any person holding such financial interest at the time this Resolution is adopted will in no case increase his percentage of such interest in another major team sport. The adoption of the foregoing Resolution shall not affect nor modify the provisions of Article III, Section 3.5 of the Constitution and By-Laws.” The minutes of the meeting also state: “In the discussion, major team sport was defined as major league basketball, hockey, baseball and soccer, and all agreed that there would be a best effort made to dispose of current holdings.” Comparable resolutions were enacted in succeeding years up to 1978, with the exception of 1975, when the subject was omitted from the agenda by inadvertence. No. 49: At the time of the NFL/AFL merger, Hunt held a minority interest in the NASL’s Dallas franchise. By additional purchases in 1968 and 1970, he acquired a controlling interest in that team. Thereafter Hunt signified his agreement to use his “best efforts” to dispose of his NASL interests, in compliance with the NFL’s 1972 resolution; but he has taken no affirmative steps to accomplish such a divestiture. No. 50: In the mid-1970’s, Hunt continued to play an active part in the affairs of the NASL. In addition to serving on league committees, he joined in efforts to interest potential investors. Hunt aroused the particular irritation of NFL owners in Philadelphia and Minnesota when he made public declarations in those areas, extolling professional soccer and its future prospects. No. 51: In consequence, the discussion of the cross-ownership ban in more recent NFL meetings focused increasingly upon Hunt, and his lack of progress in divesting himself of his NASL interests. The NFL owners also expressed concern with the situation posed by the Robbies, the league having learned that Mrs. Robbie had become controlling owner of the NASL Fort Lauderdale franchise, thereby creating NFL and NASL ownerships within the same family. The personal animus expressed by the more concerned NFL owners was more intense in respect of Hunt than the Robbies. No. 52: These more recent events culminated in the proposed amendment to the NFL by-laws quoted supra, upon which the NFL was scheduled to vote in October, 1978, thereby triggering this action. The proposed by-law goes beyond the scope of the prior resolutions, in that family members of NFL owners are included within its prohibition, and a time within which divestiture must be accomplished is specified, with substantial monetary penalties for non-compliance. No. 53: While Rozelle, in contemporaneous memoranda and his testimony at trial, suggested other policy reasons in favor of the cross-ownership ban contained in the proposed amendment, it is clear that a significant motivating force lies in the perception of certain NFL owners and Rozelle that cross-ownership between the NFL and NASL strengthens the NASL in its efforts to compete with the NFL. These constitute the Court’s findings which I deem necessary to resolution of the case. The parties have agreed upon other facts, and their omission from the foregoing paragraphs is not intended to suggest that I reject their accuracy. DISCUSSION The NASL’s complaint concludes with four specific prayers for relief: Paragraph (1) asks that the “alleged offenses” of the defendants be adjudged and declared in violation of the Sherman Act, § 1. Paragraph 2 prays for a permanent injunction against any agreement (including NFL constitution of by-law provisions) “that restricts the ability of any person to maintain, expand or acquire an ownership interest in an NASL franchise.” Paragraph 3 prays for the enjoining of: “... any contract, combination or conspiracy unreasonably restraining trade in the U.S. professional sports or entertainment markets, including any such agreements: (a) unreasonably restricting the access of NASL teams to stadiums or other playing facilities; (b) impairing the ability of the NASL to secure or expand network television contracts; and (c) restricting NFL trademark licensees from using advertisements or promotions dealing with the NASL and/or its trademarks.” Paragraph 4 prays for treble damages. The proof at trial focused almost exclusively upon the cross-ownership ban, the enjoining of which the NASL seeks in paragraph 2 of its prayers for relief. Paragraph 45(b) of the complaint alleges additional unreasonable restrictions of trade— “restricting the access of NASL franchises to stadiums, impairing the ability of the NASL and its members, until recently, to negotiate network or local television contracts, and restricting the ability of third-party licensees of the NFL trademarks to deal with licensees” — which underlie paragraph 3 of the prayers for relief. However, no significant evidence was adduced in support of these additional alleged violations, either as to the merits or resulting damages; and the NASL’s proposed findings of fact and post-trial memoranda are silent in respect of them. These claims may accordingly be deemed abandoned. I turn, then, to the cross-ownership ban, upon which the parties concentrated their energies. This Court preliminarily enjoined implementation of the cross-ownership ban because the NASL demonstrated a substantial threat of immediate irreparable harm, and the existence of sufficiently serious merits questions to make them a fair ground for litigation. 465 F.Supp. at 668. The Court also ruled, in the context of the preliminary injunction motion, that the legality of the ban should be judged by the rule of reason. The parties had urged different approaches. The NASL, viewing NFL teams as horizontal competitors, characterized the ban as a boycott, illegal per se. The NFL viewed itself, within the relevant market, as a single economic entity, so that Sherman Act § 1 concepts did not apply. These contentions were originally asserted on the basis of affidavits and memoranda of law. Following extensive discovery and a full trial, they are reasserted with undiminished vigor. That is as it should be. The Court’s prior opinion does not foreclose the NASL’s argument, asserted after trial, that the proof discloses a per se § 1 violation. By the same token, the Court’s prior opinion does not foreclose the NFL’s argument, asserted after trial, that the requisite joint action under § 1 is not present. That is so, notwithstanding this Court’s earlier statement that “there is no serious dispute but that enactment of the proposed by-law amendment would constitute an agreement among the NFL and its member teams sufficient to satisfy the ‘contract, combination ... or conspiracy’ language of section 1 of the Sherman Act.” 465 F.Supp. at 672. In point of fact, the NFL hotly disputes that proposition. These assertions must be considered anew, in the light of discovery and a full trial record. I begin with the NFL’s contention that its conduct, as revealed by the evidence, does not fall within the Sherman Act, since if that position is well founded, certain other questions do not arise. The NFL regards itself as “a single economically-integrated competitor,” or “a single economic actor.” NFL pre-trial brief at 7,17. The NASL responds that this “single economic firm” defense “disregards more than twenty years of decisions ... which consistently have applied Section 1 of the Sherman Act to the NFL defendants.” NASL post-trial brief at 129. Those antitrust cases involving the NFL cited in the margin the NASL refers to collectively as the “NFL Defendants’ Antitrust Liability Cases.” In addition, the NASL says that “Section 1 has also been consistently applied to other professional team reports,” ibid., the relevant citations also appearing in the margin. We must consider the extent to which the NFL’s present argument is foreclosed by prior decisions. A. Antitrust Cases Involving the NFL. The NFL’s first reported encounter with the antitrust laws appears in United States v. National Football League, 116 F.Supp. 319 (E.D.Pa.1953). The government sued to enjoin enforcement of NFL by-laws governing the telecasting and broadcasting of NFL games. A provision preventing the telecasting of outside games into the home territories of other teams, on days when the other teams are playing at home, was characterized by Judge Grim as “a clear case of allocating marketing territories among competitors, which is a practice generally held illegal under the antitrust laws.” 116 F.Supp. at 322. Nonetheless, that provision, intended to protect the home ticket sales of the weaker clubs and thus permit their continued competitive existence, was sustained as a reasonable restriction, and a legal restraint of trade, the court concluding: “The League is truly a unique business enterprise, which is entitled to protect its very existence by agreeing to reasonable restrictions on its member clubs.” Id. at 326. More restrictive provisions were held illegal, in the absence of evidence of salutary effect “on the attendance and gate receipts of a team’s home games.” Id. at 326. The court found it unnecessary to reach the NFL’s contention, based on the Supreme Court’s baseball games, that professional football was not engaged in interstate commerce, since the restrictions “by professional football on the sale of radio and television rights impose substantial restraints on the television and radio industry,” whose presence in interstate commerce was sufficient to implicate the antitrust laws. Id. at 327-8. In Radovich v. National Football League, 352 U.S. 445, 77 S.Ct. 390, 1 L.Ed.2d 456 (1957), the Supreme Court answered the question left open by the district court in United States v. National Football League, supra. The complaint alleged the following. Plaintiff, a football player, broke his contract with the NFL’s Detroit Lions and signed with a rival league. Following disbanding of that league, plaintiff sought employment with an NFL-affiliated league. The NFL then announced plaintiff was black-listed, which prevented his employment in organized football in the United States. Plaintiff alleged this conduct violated §§ 1 and 2 of the Sherman Act. The NFL moved to dismiss the complaint on the basis of the baseball cases. The Court declined to extend its baseball exemption to football, and held that the complaint sufficiently alleged a cause of action under the Sherman Act. Player relations lie at the heart of several other cases the NASL cites. Smith v. Pro Football, Inc., 593 F.2d 1173 (D.C.Cir.1978), held the NFL player draft to be an unreasonable restraint on trade in violation of § 1 of the Sherman Act. Mackey v. National Football League, 543 F.2d 606 (8th Cir. 1976), cert, dismissed, 434 U.S. 801, 98 S.Ct. 28, 54 L.Ed.2d 59 (1977), held that the so-called “Rozelle Rule,” restricting the movement of free agents between teams, was unlawful. Kapp v. National Football League, 390 F.Supp. 73 (N.D.Cal.1974), aff’d on other grounds, 586 F.2d 644 (9th Cir. 1978), held that the Rozelle Rule, NFL player draft, the “no tampering rule,” and the Standard Player Contract violated the antitrust laws. In Bowman v. National Football League, 402 F.Supp. 754 (D.Minn.1975), the district court preliminarily enjoined an NFL resolution barring the hiring in 1975 of players and coaches who had participated in the rival World Football League. The Los Angeles Coliseum case, presently pending on appeal to the Ninth Circuit, involves an NFL by-law governing the location of its member clubs. Plaintiff operates the Los Angeles Coliseum, which has been vacated by the recent decision of the NFL’s Los Angeles Rams to play their home games in Anaheim, a city located south of Los Angeles in Orange County, California. The Oakland Raiders, another NFL team, thereupon announced its desire to play its home games at the Coliseum. That move is presently balked by an NFL by-law requiring that the transfer of a playing site be approved by three-fourths of the NFL member clubs. In Coliseum I, 468 F.Supp. 154, Circuit Judge Pregerson (sitting by designation), held that the NFL by-law implicated the antitrust laws, but that plaintiff had not yet demonstrated standing to attack the by-law under §§ 1 and 2 of the Sherman Act. In Coliseum II, 484 F.Supp. 1274, the proposed Raiders move having been clarified, Judge Pregerson concluded that plaintiff had standing, and preliminarily enjoined enforcement of the by-law on a rule of reason analysis. The NASL’s last “NFL Defendants’ Antitrust Liability Case,” Hecht v. Pro-Football, Inc., 570 F.2d 982 (D.C.Cir. 1977), does not in fact address the question of league liability. The promoters of an American Football League franchise in Washington, D.C. sued the operator of the NFL’s Washington Redskins and the operator of the Robert F. Kennedy Stadium. A restrictive covenant in the Redskins’ stadium lease prevented the stadium from being used by any other professional football team. Plaintiffs alleged that the stadium was the only suitable facility for professional football games in Washington, and that the restrictive covenant in the lease, which prevented plaintiffs from establishing an AFL franchise to compete with the Redskins in the Washington professional football market, violated §§ 1 and 3 of the Sherman Act. Following a jury verdict in defendants’ favor, the court of appeals reversed and remanded on the basis of the trial judge’s erroneous instructions. B. Antitrust Cases Involving Other Professional Team Sports. The Sherman Act cases involving other professional team sports cited by the NASL, see n. 2 supra, all concern restrictions of one kind or another upon a team’s ability to negotiate for or sign a player to a contract. Two other professional sports league antitrust cases should be noted. In San Francisco Seals v. National Hockey League, 379 F.Supp. 966 (C.D.Cal.1974), an NHL member wishing to move its club from San Francisco to Vancouver challenged by-laws requiring league approval of such a transfer, that approval having been denied. The district court found no Sherman Act violation. In Levin v. National Basketball Association, 385 F.Supp. 149 (S.D.N.Y.1974), prospective team purchasers sued the NBA, which had denied their application. The district court found no Sherman Act violation. C. Further Analysis of the Professional Sports League Antitrust Cases. The NFL and NASL, together with other professional sports leagues, compete in the entertainment industry. The primary economic competition involving professional sports leagues occurs between and among the competing leagues. The NFL submits that, in such competition, it acts as a single economic entity, thus precluding application of Sherman Act § 1. May I accept that submission, as the NASL argues, only by disregarding years of contrary authority, contained in the cited cases? No case is directly in point. A professional sports league’s ability, within the context of antitrust law, to condition participation of an individual in its ownership ranks upon non-participation in a competing league has never previously been litigated, in the Supreme Court, the Second Circuit, or elsewhere. Therefore the principle of stare decisis does not arise. I may accept the NFL’s submission without branding myself a judge willing “stubbornly to persist in his views on a particular issue after the contrary had become part of the tissue of the law.” Frankfurter, J., dissenting in Radovich, supra, 352 U.S. at 455, 77 5. Ct. at 396. But the NFL has urged its single economic entity concept in certain of the prior cases, without total success. I must consider whether those cases point the way to proper resolution of the case at bar. The NASL says that, in advancing its single economic entity concept, the NFL seeks “a flat grant of immunity from Section 1” (post-trial brief at 131). That is an overstatement. The NFL did, indeed, claim total immunity from Sherman Act coverage in United States v. National Football League, supra, and Radovich, supra; but Radovich sounded the death knell of the immunity claim, and all subsequent cases recognize that the conduct of professional sports leagues (save for baseball’s charmed circle) may implicate antitrust law. The issue in prior cases, and the case at bar, is whether the particular conduct involved violates that law. Addressing that issue, several leagues have made the single economic entity argument. They are hardly undefeated, but have not been entirely shut out in judicial arenas. In San Francisco Seals Ltd. v. National Hockey League, supra, the district court held the Sherman Act inapplicable to a member club’s attack on a league by-law requiring league approval of a franchise transfer. “It is fundamental in a section 1 violation,” the court wrote, “that there must be at least two independent business entities accused by combining or conspiring to restrain trade.” 379 F.Supp. at 969. Within the relevant market, namely “the production of professional hockey games before live audiences,” ibid., the requisite plurality did not exist between plaintiff club and the other defendant clubs; nor did the by-law restrain trade. Those propositions followed from the nature of a sports league. The court observed: “Within the relevant market in which we are here concerned, plaintiff and defendants are not competitors in the economic sense. It is of course true that the member teams compete among themselves athletically for championship honors, and they may even compete economically, to a greater or lesser degree, in some other market not relevant to our present inquiry. But, they are not competitors in the economic sense in this relevant market. They are, in fact, all members of a single unit competing as such with other similar professional leagues. Consequently, the organizational scheme of the National Hockey League, by which all its members are bound, imposes no restraint upon trade or commerce in this relevant market, but rather makes possible a segment of commercial activity which could hardly exist without it.” Id at 969-970 (emphasis added). Judge Owen of this Court adopted the rationale of San Francisco Seals in Levin v. National Basketball Association, supra. The NBA constitution required a three-fourths vote of the membership to approve a transfer of membership. Plaintiffs applied to purchase the Boston Celtics, and challenged the constitutional requirement when the league rejected the application. The court dismissed the antitrust complaint. Judge Owen accepted the NBA’s self-characterization as a “joint venture,” and then observed: “Each of its joint venturers holds a franchise to operate a team. While the teams compete vigorously on the basketball court, the joint venturers are dependent upon one another as partners in the league format to make it possible.” 385 F.Supp. at 150. Plaintiffs’ proof was that the league members rejected their application because they were friendly with an unpopular and divisive club owner. Accepting that theory in the context of defendants’ motion for summary judgment, Judge Owen held that the league members’ reason for rejection “was not an anti-competitive reason,” and had “neither anti-competitive intent nor effect.” Id at 152. The court stated: “While it is true that the antitrust laws apply to a professional athletic league, and that joint action by members of a league can have antitrust implications this is not such a case. Here the plaintiffs wanted to join with those unwilling to accept them, not to compete with them, but to be partners in the operation of a sports league for plaintiffs’ profit.” Ibid (emphasis in original; footnotes omitted). Plaintiffs had relied on Denver Rockets v. All-Pro Management, Inc., supra, one of the player contract restriction cases discussed at n.2 ante; but Judge Owen found San Francisco Seals, supra, more in point: “The distinguishing difference, in my opinion, is that the limiting by-law attacked in Denver Rockets prevented a player from entering and competing with other players in the players’ market, whereas in this case the plaintiffs wanted to become partners with, not competitors of, those who excluded them. I find more applicable the rational [sic] of San Francisco Seals, Ltd v. National Hockey League, 379 F.Supp. 966, (C.D.Cal., 1974). In that case the Court found no antitrust violations and dismissed where the Board of Governors of the National Hockey League refused to permit plaintiff to transfer its franchise from San Francisco to Vancouver, B. C., where plaintiff presumably thought it could have a more profitable operation.” Ibid at n.6. Sensing intimations of single economic entity immortality in San Francisco Seals and Levin; the NFL urged the concept as a defense to the antitrust claims of that disaffected athlete James McCoy (Yazoo) Smith in Smith v. Pro Football, Inc., supra. The argument failed. The Smith court acknowledged that “[t]he [NFL] clubs operate basically as a joint venture in producing an entertainment product — football games and telecasts.” 593 F.2d at 1179. Levin and San Francisco Seals were cited, ibid, at n.19, as noting “joint venture” characteristics of the NBA and NHL. In consequence, the Smith court declined to condemn the NFL player draft as a per se illegal boycott between horizontal competitors. But the draft implicated antitrust law, and failed to survive rule of reason analysis, because of its “severely anticompetitive impact on the market for players’ services,” id. at 1183, a market in which the league members unquestionably competed with each other. Thus the NFL brief in Smith conceded that the draft ‘restricts competition among the NFL clubs for the services of graduating college players,’ ” an anticompetitive purpose producing the intended anticompetitive effect: “The draft inescapably forces each seller of football services to deal with one, and only one, buyer, robbing the seller, as in any monopolistic market, of any real bargaining power. The draft, as the District Court found, ‘leaves no room whatever for competitors among the teams for the services of college players, and utterly strips them of any measure of control over the marketing of their talents.’ ” Id. at 1185 (emphasis added). Enter Sherman Act § 1; exit the player draft, under the rule of reason. The NFL next sent the single economic entity concept in to call defensive signals in the Los Angeles Coliseum case. The litigation arose, it will be remembered, out of the Oakland Raiders’ desire to move from the greater San Francisco area to play their home games in Los Angeles, and the eagerness of the Los Angeles Coliseum to receive them, the Los Angeles Rams having vacated the Coliseum to play at Anaheim, in neighboring Orange County. At issue is the validity of an NFL by-law restricting such a transfer. Circuit Judge Pregerson, preliminarily enjoining enforcement of the by-law, rejected the single economic entity defense. He commences his discussion by observing: “Whether NFL teams engage in economic competition as independent units is a troublesome question. The relationship between the teams does not fit the traditional competitive mold.” 468 F.Supp. at 163. While the court recognized the economic necessity of cooperation in certain areas, it also pointed out that the NFL teams are separately owned, do not share profits and losses, and “compete for college players and NFL players who are ‘free agents.’ ” Ibid. Judge Pregerson then focused upon another area of competition, central to the case before him: “If another NFL team were to play its home games in the Coliseum, that team and the Rams would compete to some extent for fan support in the Southern California area and thus for ticket sales and other revenue.” Ibid. The court reached this conclusion: “The court concludes that competition for players and, depending on a team’s location, competition for fans, indicates that the NFL teams are economic competitors, though not in the traditional sense. This view is supported by a mñnber of cases where courts have held that the rules of a professional sports league violated § 1 of the Sherman Act. In reaching that conclusion, these courts necessarily found that the teams making up the league were engaged in economic competition.” Id. at 164. The citations which follow relate to sports league restrictions upon player contracts. Granting a preliminary injunction in Coliseum II, Judge Pregerson stated: “The primary anticompetitive aspect of § 4.3 is fairly self-evident: a rule which inhibits teams from transferring their home locations may act to prevent an existing team from transferring into the Los Angeles-Orange County area to compete with a team already there for dollars in the pockets of sports fans. In addition, a rule which hinders a new NFL team from moving into Los Angeles would inhibit local competition for football players, coaches, and other personnel.” 484 F.Supp. at 1277.® These are the cases which consider the concept of the NFL as a single economic entity. What conclusions may one draw? First, the courts do not reject the concept out of hand. On the contrary, Judge Grim’s characterization of a professional sports league as “truly a unique business enterprise” is echoed in later cases, most recently by Judge Pregerson’s observation in Coliseum I that “[t]he relationship between the teams does not fit the traditional competitive mold.” 468 F.Supp. at 163. But courts have rejected the NFL’s defense, based upon the single economic entity concept, in the particular circumstances considered above. A tension unmistakably arises between the concept of a league, whose members must combine and cooperate if the league is to function at all, and the Sherman Act § l’s prohibition of combinations in restraint of trade, which requires the presence of “at least two independent business entities,” San Francisco Seals, supra, at 379 F.Supp. 969. Analysis of the cases suggests a resolution of that tension. If member teams of a professional sports league compete with each other in an identifiable market, § 1 of the Sherman Act applies; the legality of restraints on such competition is judged by the rule of reason; and third parties damaged by illegal restraints may claim Clayton Act remedies. Thus the single economic entity defense fails in the player contract restriction cases, where all member teams compete with each other for players, and league restraint of that competition damages the players. Similarly, the defense fails where two member teams would compete in the same geographical area for sports fans’ dollars, and league restraint of that competition damages a stadium operator. But if joint league conduct neither implicates nor impinges upon competition between the member clubs, then the professional sports league, that unique business enterprise not fitting the usual competitive mold, may properly be regarded as a single economic entity; and in those circumstances, § 1 of the Sherman Act has no office to perform. That is so, even if the joint league conduct disadvantages another competitor in the entertainment industry. The distinction lies between competition and competitors. “The law is well established that it is competition, and not individual competitors, that is protected by the antitrust laws.” Levin, supra, at 152, citing Checker Motors Corp. v. Chrysler Corp., 283 F.Supp. 876 (S.D.N.Y.1968), aff’d, 405 F.2d 319 (2d Cir. 1969), cert, denied, 394 U.S. 999, 89 S.Ct. 1595, 22 L.Ed.2d 777 (1969). Economic conduct may damage competitors. Indeed, it may be specifically designed to do so. There is nothing illegal in that. Competitors compete. The disadvantaged competitor’s injury is compensable under the Clayton Act if, and only if, such injury is a particularized manifestation of that greater public injury proscribed by the Sherman Act. This basic distinction was well stated by Judge Thomsen in Schwing Motor Co. v. Hudson Sales Corp., 138 F.Supp. 899, 903 (D.Md. 1956), aff’d, 239 F.2d 176 (4th Cir. 1956), cert, denied, 355 U.S. 823, 78 S.Ct. 30, 2 L.Ed.2d 38 (1957): “The main purpose of the anti-trust laws is to protect the public from monopolies and restraints of trade, and the individual right of action for treble damages is incidental and subordinate to that main purpose. (cases cited). Public injury alone justifies the threefold increase in damages. It is essential, therefore, that the complaint allege facts from which it can be determined that the conduct charged to be in violation of the anti-trust laws was reasonably calculated to prejudice the public interest by unduly restricting the free flow of interstate commerce, (cases cited).” If competition between the NASL and NFL truly pits league against league — an economic rivalry uncomplicated by competition between the league members inter se —then the sports league cases discussed supra, viewed in the light of established antitrust principles, appear to take this case beyond the boundaries of the Sherman Act, unless Supreme Court or Second Circuit authority in other antitrust areas require a different conclusion. I consider those questions in turn. D. The Nature of the Competition Between the NASL and NFL. This question does not require extended discussion. Competition between the NASL and NFL in the entertainment industry is one on one: league against league. Judge Curtis was quite right in San Francisco Seáis, supra, when he said that the “main purpose” of a professional sports league is “producing sporting events of uniformly high quality,” the member teams “acting together as one single business enterprise, competing against other similarly organized professional leagues.” 379 F.Supp. at 969. It is the league product — its sporting events — which competes against the comparable product of competing leagues. The NASL’s product is NASL soccer. The NFL’s product is NFL football. The other competing products are major league baseball, NHL hockey, and NBA basketball. The degree of competition grows greater as the traditional sports seasons expand under the influence of television marketing. When I was a child, I played as a child: baseball in summer, football in fall, hockey in winter. But now that commercial sports marketing has made me a man, I put away childish limitations, and sit before my television to watch hockey in late May, football in the heat of early August, and baseball in the chilly night winds of late October. Competition between the NASL and NFL has grown in recent years, in part because their seasons overlap. Increasingly, the seasons of all five major league sports overlap. The resulting competition is between sports events in the generic sense: professional football, soccer, baseball, basketball, and hockey. These are products which only the professional league, acting as a single entity, can manufacture. This proposition is essentially undisputed. As noted ante, the parties agree that the primary economic competition in professional sports “occurs between and among the competing leagues.” The